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Fallout From California’s Same-Sex Marriage Law

Robert Blaudow and Derek Norman came to California this week from their home in Memphis, Tennessee to attend a scientific conference. They also managed to make a little history. Four minutes after California's Supreme Court ruling legalizing same-sex marriage went into effect on Monday evening, the couple were among the first at the Alameda County courthouse in Oakland to recite their vows. Twirling their new diamond-studded silver bands, Blaudow, 39, and Norman, 23, plan to use their new California license—which replaces the terms "bride" and "groom" with "party A" and "party B"—to apply for spousal benefits when they get home to Tennessee, which bans same-sex marriage. "I'd like to put Derek on my health plan when his insurance expires in November," says Blaudow, a biologist with a biotech firm. "If that becomes an issue, then we'll do whatever it takes to exercise our rights. Why not push ahead and be at the forefront?"

The prospect of newlywed tourists flying home from their California weddings to spark legal battles around the country has raised the stakes in the marriage wars to a new level. (Unlike Massachusetts, which legalized gay marriage in 2004, California does not impose a residency requirement.) While attention for now is focused on jubilant couples, the validity of the California marriages in other states—and even here in the Golden State—is far from assured. In recent years, 44 states have passed prohibitions against same-sex marriage, although eight recognize civil unions or domestic partnerships. Only New York and Rhode Island require that the same-sex marriage licenses of other states be recognized. And in California, opponents of same-sex marriage have qualified a measure for the November ballot that would amend the state constitution to define marriage as a union between one man and one woman. If it passes, the state Supreme Court ruling would become moot. "The outcome of this election will decide the future of marriage for the entire country," says Andrew Pugno, an attorney for Protectmarriage.com, the group behind the measure. "If voters do not reverse the court, same-sex couples with California licenses will create a nationwide tsunami of lawsuits that will challenge marriage laws in all the other states."

This is more or less the scenario that marriage proponents envisioned-one they predict could trigger on a national scale the kind of court battle that began in California four years ago, when San Francisco Mayor Gavin Newsom ordered officials to start issuing marriage licenses to same-sex couples. Some four thousand renegade weddings were held in 2004, before a lower court ruled that the unions were not valid under existing California law. Couples sued the state—joined by the city government of San Francisco as well as several advocacy groups—charging that their right to equal protection under the law was being violated. Last month, the California Supreme Court, dominated by Republican-appointed justices, agreed and struck down a law passed by more than 61 per cent of voters in 2000 that defined marriage as between a man and a woman—setting the stage for the weddings now taking place around the state. "California is without any doubt the tipping point," says Kate Kendell, executive director of the National Center for Lesbian Rights.

Yet even as champagne corks fly, both sides are gearing up yet again for a multi-million dollar ballot campaign that could force the issue onto the agenda in the presidential campaign. It's a topic neither major party candidate seems especially eager to discuss. Barack Obama favors domestic partnerships; John McCain does not. But both have spoken out against a federal amendment banning gay marriage—and neither wants to make gay marriage a defining issue in 2008. Obama, who says he personally believes that marriage is between a man and a woman, is trying to dodge the "liberal" label and also wants to attract tradition-minded Latinos, who factor heavily in states such as California. McCain walks an even trickier line. Two years ago, in an effort to woo conservatives, he backed an unsuccessful measure that would have banned same sex marriage and even domestic partnerships in Arizona. (McCain justified the apparent contradiction with his position on a federal ban by saying that marriage laws should be decided at the state level.) But in order to put California into play this fall, he must woo independents and more liberal Republicans, without offending conservatives elsewhere. McCain also wants to avoid contradicting Gov. Arnold Schwarzenegger, who has called the measure to amend the state constitution a "waste of time" and is expected to be a key surrogate for McCain around the country.

Schwarzenegger has said he personally believes marriage is between a man and a woman—the preferred safe position with candidates of both parties. But he also has promised to uphold the court's ruling, and is said to be far more focused on the state's budget woes and a worsening drought. "This is not a burning issue for him," says Schwarzenegger adviser Daniel Zingale, who is openly gay and also serves as California First Lady Maria Shriver's chief of staff. (Schwarzenegger's own chief of staff, Democrat Susan Kennedy, is also openly gay.)

Schwarzenegger has not yet said whether he'll campaign against the ballot measure—though his statements criticizing it are fair game for television ad makers. Speaking to reporters in Sacramento recently, Schwarzenegger made his most favorable comments yet about the new California law. "I hope California's economy is booming because everyone is going to come here and get married," Schwarzenegger said. "I think all of this is great." Already, same-sex wedding planners report a booming business, and there are even online wedding planning services, such as Wowvownow.com, a startup launched after last month's court ruling. A UCLA study earlier this month estimated that same-sex marriages would increase spending by almost $684 million in the next three years.

Same-sex marriage advocates also believe that public opinion is turning their way. A Field Poll taken after the May ruling found that for the first time, a slim majority of California voters—51 percent—favor marriage rights for same-sex couples. The results represent a sea change from 2000, when more than 61 per cent of voters passed a ballot measure that prohibited gay marriage. When the Field Poll first began testing public attitudes on gay marriage, in 1977, only 28 percent were in favor. Since then, public opinion has steadily shifted, especially among younger voters (Among 18 to 29-year-olds surveyed by the Field Poll, 68 percent were in favor of allowing same-sex couples to marry.) Pollsters say the change is attributable at least in part to greater familiarity and acceptance of gay culture. But it is also true, they say, that people opposed to same-sex marriage, wary of seeming bigoted, are not always truthful when questioned. One Bay Area television station sent a reporter to a conservative suburb Monday evening to test the proposition. No one opposed to gay marriage was willing to go on camera. "All the polls have taken place against the theoretical backdrop of marriage," says Kendell of the NCLR. "Once people start attending weddings of neighbors and co-workers and those they care about, it will move a significant number of undecideds."

Supporters of the measure to amend California's constitution are equally certain that this week's scenes of gay couples marrying will move the dial in their direction. Protectmarriage.com expects to raise millions of dollars around the country to pour into its California campaign, as lawsuits multiply. "The rights of other states are being infringed by what the California Supreme Court did," says Jeff Flint, a spokesman for Protectmarriage.com. "This isn't the final word." On that point, at least, no one is arguing.

Senator Bob Menendez said he was "disappointed, but not surprised, that the Trump administration has failed once again to prioritize our long-term national security interests or stand up for human rights."